If this is your first visit, be sure to
check out the FAQ by clicking the
link above. You may have to register
before you can post: click the register link above to proceed. To start viewing messages,
select the forum that you want to visit from the selection below.

Admission of Non-Record Documents: D. Ariz.

11-05-2018, 10:34 AM

In a recent, and relatively straightforward, opinion from Arizona, the court works its way through Plaintiff's motion to admit certain non-record documents. Most notably, Plaintiff was attempting to admit a 2017 BCBS (Defendant) Appeal Guidelines and Procedures manual, as well as information from two public websites. With respect to the manual, as the claim arose under the 2014 version and that version was part of the administrative record, the court quickly dispensed with that part of the motion. In similar fashion, the court reasoned through the website materials as follows:

The only remaining evidence which Plaintiff seeks to admit from outside the administrative record are two public website materials posted by Harvard Pilgrim Health Care and Health Care Service Corporation. (Mot.) Specifically, these pages describe the coverage that those two insurance companies provide for Plaintiff’s cancer treatment. (Resp. at 1.) Presumably, Plaintiff seeks to admit them to show that other insurers cover his treatment and that it was unreasonable for Defendant not to. Defendant argues that the extrinsic evidence goes to the merits of Plaintiff’s claim—not to any alleged conflict of interest. (Resp. at 2.) Unsurprisingly, Plaintiff argues in his Opening Brief that the plan administrator failed to exercise discretion and thus the Court should apply a de novo review standard, which would permit extrinsic evidence. (Pl. OB at 5–12.) Plaintiff also argues that decisions about his cancer treatment were the product of a conflict of interest because Defendant is a fiduciary to Sunstate’s medical plan and those covered by the plan. (Pl. OB at 12–13.) Also unsurprisingly, Defendant argues the opposite—that the abuse of discretion standard should apply and there was no conflict of interest, meaning the Court should not examine any evidence outside the administrative record. (Doc. 60 at 8–9.) By its plain language, the plan at issue gives its administrator, Defendant, “discretionary authority to determine extent of coverage.” (Doc. 65-1 at 14). Specifically, Defendant determined that Plaintiff’s treatment was not “medically necessary,” which it has discretion to decide under the plan. (Doc. 65-1 at 14) (“BCBSAZ, or BCBSAZ’s contracted vendor, in its sole and absolute discretion, decides whether a service is medically necessary.”). Based on the plain terms of the plan, abuse of discretion review applies. See Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Emps. of Transferred GE Operations, 244 F.3d 1109, 1113 (“it is ‘easy enough’ to confer discretion unambiguously” by using the word “discretion”) (quoting Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1206 (9th Cir. 2000)). But while Plaintiff does not seem to dispute that the plan on its face confers discretion, he argues that the administrator nonetheless failed to exercise that discretion. (Pl. OB at 6.) Plaintiff claims that Defendant’s administrator “merely quoted” the applicable medical guidelines to determine that his treatment was not medically necessary, and that Defendant never “analyzed his health, life expectancy, lifestyle or treatment objectives . . . [and] [n]either did they compare the likely effectiveness of [Plaintiff’s] therapy to any other forms of treatment.” (Pl. OB at 6.) It is true that all the administrator had to do was reference the applicable Medical Coverage Guidelines (“MCGs”) for a conclusion that, under the plan, Plaintiff’s “therapy is considered not medically necessary . . . based upon insufficient evidence to support improvement of the net health outcome.” (Doc. 63-1 at 6). But even if the administrator’s discretion was limited, the plan’s unambiguous language keeps it within abuse of discretion review. Abatie, 458 F.3d at 963 (“we have repeatedly held that similar plan wording—grantingthe power to interpret plan terms and to make final benefits determinations—confers discretion”). Abatie acknowledges one case where extremely limited discretion made de novo review appropriate, but there, the plan’s “provisions merely identified the plan administrator’s tasks and bestowed no power to interpret the plan.” Id. Here, the plan unambiguously bestowed the power of discretion on the plan administrator, and in choosing and applying the correct guidelines, the administrator exercised some minimal amount of discretion. Thus, absent a conflict of interest, the Court will apply an abuse of discretion standard.

Ultimately, the court admitted the few items that were uncontested, but disallowed the two materials mentioned above. The entire opinion is attached below.